Naryana Chand Oswal vs State of Madhya Pradesh

This criminal appeal against conviction filed on behalf

of the accused/appellant Kumar Singh Thakur is directed

against judgment dated 08.04.2004 passed by the Court of

Sessions Judge, Shahdol in Sessions Trial No.117/2003,

whereby the accused Kumar Singh Thakur was convicted

under Section 302 of the I.P.C. for committing murder of his

wife Pammi Singh and was sentenced to undergo life

imprisonment and a fine in the sum of Rs.500/-. In default of

payment of fine, he was directed to undergo simple

imprisonment for a further period of one month.

The prosecution case before the trial Court in brief was

as hereunder: Deceased Pammi Singh had married accused

Kumar Singh Thakur about 10 years before the date of the

incident. They had three daughters and a son. On 13.03.2003,

accused Kumar Singh Thakur had beaten deceased Pammi

Singh with a stick causing injuries to her back and waist.

Pammi Singh had lodged a report of the aforesaid incident in

P.S.-Amlai, District- Shahdol, the same day. Subsequently, on

16.03.2003, at about 7:00 p.m., the deceased did not feel well;

therefore, she was lying in her house covering herself with a

shawl. At around 7.30 p.m., accused Kumar Singh Thakur

returned home and asked the deceased to cook meals;

whereon, the deceased expressed her inability to prepare

meals on account of illness. Accused Kumar Singh Thakur

started to abuse the deceased and dragged her down from the

Cot. He took up a jerry can lying nearby and poured kerosene

upon her. Thereafter, he lit a match-stick and set her ablaze.

Pammi Singh started to burn; whereon, the accused took his

children and went outside. Pammi came out and ran towards

the police station screaming on her way. She was spotted by

her neighbours in aforesaid condition. Since, all her clothes

had burnt, she reached the police station in a naked condition.

Assistant-Sub-Inspector, R.B. Pandey (PW-11) recorded the

First Information Report (Ex.P/15) lodged by the deceased.

She was immediately referred to Community Health Centre,

Dhanpuri. At about 8.20 p.m. the same evening, duty doctor

K.K. Gautam (PW-8) examined the victim. On being asked

by the police, he also recorded the dying declaration of the

deceased at about 11.30 p.m. At that time, she was conscious

and was in a fit state of body and mind to record the same.

Thereafter, the deceased was referred to District Hospital,

Shahdol. Since, no Executive Magistrate was available, Dr.

Mahanti (PW-7), the duty doctor was asked to record the

dying declaration. Since, he had no experience of recording a

dying declaration, he did not do the same. Thereafter, at about

10.45 p.m., Assistant-Sub-Inspector, R.B. Pandey (PW-11),

after obtaining the certificate of fitness from the doctor,

recorded her dying declaration. The deceased expired on

18.03.2003. After due investigation, the charge-sheet was

filed.

The trial Court framed a charge under Section 302 of

the I.P.C. against accused Kumar Singh Thakur. The accused

abjured the guilt and claimed to be tried. In the examination

under Section 313 of the Cr.P.C., he took the defence that at

the time of the incident, his wife Pammi Singh was

threatening him that she would commit suicide by setting

herself afire. She also threatened that she would burn all her

four children and would get the accused falsely implicated;

therefore, the accused had gone to police station to lodge a

report against his wife. He came back with the police to his

house. He found that his wife was lying at home in an

unconscious condition after suffering burns. Thereafter, the

police took him and his wife to the police station. His wife

regained consciousness but she was unable to speak. Next day

she expired but the police has falsely implicated him in the

case.

After the trial, the trial Court had held that the accused

had poured kerosene upon the deceased from a Jerry-can and

had set her afire with a match-stick. As a result, the deceased

suffered about 100% burns. However, before her death, she

managed to give at least three dying declarations to two

different authorities, which were sufficient to convict the

accused for the murder of his wife Pammi Singh.

Consequently, accused Kumar Singh Thakur was convicted

and sentenced as herein above stated.

Learned counsel for the appellant has challenged the

conviction and sentence mainly on the ground that the

deceased had suffered 100 % burns. In these circumstances, it

was not possible for her to have travelled a distance of about

2 kms. from her residence to the police station and lodge a

report. The victim survived for more than 24 hours after the

incident; however, the police had failed to get her dying

declaration recorded by an Executive Magistrate. Since she

was 100 % burnt, it was not possible for her to put thumb

impression upon the dying declaration. In these

circumstances, the dying declaration recorded by Dr. K.K.

Gautam (PW-8), which is purported to have been thumb-

marked by her, cannot be relied upon. It has also be

contended that no one saw the deceased running from her

residence to the police station.

Learned Government Advocate for the

respondent/State on the other hand has supported the

impugned judgment.

On perusal of record and due consideration of rival

contentions, we are of the view that this criminal appeal must

fail for the reasons herein after stated.

The incident is said to have taken place at about 7:00

p.m. on 16.03.2016. Draupadi Devi (PW-5) has stated that

Pammi Singh lives in front of her house. In the evening of the

incident, Pammi was screaming "Bachao Bachao". She saw

deceased Pammi standing in her door way in a burning

condition. Thereafter, she fell down. As she was afraid, she

went inside. Another neighbour, Raj Kishore Mishra (PW-3)

has stated that at the time of the incident, he heard the noise

that "Kumar''s wife has burnt". On hearing the commotion, he came out. He saw Pammi coming out her house. She was

screaming "Bachao Bachao". All her clothes had burnt and

she was naked. She was running in southern direction in

which the police station is also situated.

Assistant Sub-Inspector R.B. Pandey (PW-11), who

was posted in P.S.-Amlai has stated that at about 7:00 p.m.

on 16.03.2003, the deceased had come alone to the police

station. All her clothes had burnt. She was shouting and

gasping. She fell down on the steps of the police station. They

took her up and propped her against a pillar. They gave her a

blanket to cover herself. At about 7.45 p.m., he recorded the

First Information Report (Ex.P/15) lodged by the deceased

Pammi. This witness has further stated that thereafter, he

referred her to the hospital. Dr. K.K.Gautam (PW-8) has

stated that on 16.03.2003, he was posted as Assistant Surgeon

in Community Health Centre, Dhanpuri. On that day, the

deceased Pammi Singh was brought to him in a burnt

condition. He discovered that she was 100% burnt and was

smelling of kerosene. Her clothes had stuck to her body and

her general condition was poor.

This witness has further stated that at about 8.30 p.m.,

he received a requisition from P.S -Amlai for recording dying

declaration of the deceased (Ex.P/11). At that time, Pammi

was fully conscious and was in a fit state to give dying

declaration. She remained conscious during the entire length

of dying declaration. The certificate given by him in this

regard is Ex.P/12.

Assistant Sub-Inspector, R.B. Pandey (PW-11) has

further stated that at about 10.45 p.m. as well, he had

recorded the statement of deceased Pammi Singh. At the time

of taking the statement, Pammi Singh was in a fit state to

speak and she had capacity to think. He had received a

certificate from the duty doctor with regard to the deceased

Pammi Singh. The certificate is Ex.P/18.

Thus, we see that there are three dying declarations

recorded by two different authorities of two different

government departments. The First Information Report

(Ex.P/15) has also acquired the status of a dying declaration

with the death of the maker thereof. All three dying

declarations are similar in nature. The gist of aforesaid dying

declarations is that about 3-4 days before the date of the

present incident, Kumar Singh Thakur, husband of the

deceased Pammi had beaten her. As a result, she did not feel

well and was lying on the cot. Her husband came and asked

her to cook meals; however, she expressed her inability to do

the same. He poured kerosene upon the deceased from a

jerry-can and set her ablaze by using a match-stick.

Thereafter, he left. The deceased ran towards the police

station in a burnt condition and lodged the First Information

Report immediately.

As such, we find that all three dying declarations are

similar and in each one of them, the deceased has held her

husband accused Kumar Singh Thakur responsible for her

death. Witnesses Vatur Singh (PW-2) and Raj Kishore Mishra

(PW-3) had seen her in a burnt condition. Raj Kishore Mishra

(PW-3) had seen her screaming and running towards the

police station. It may be noted that at least two witnesses

namely Raj Kishore Mishra (PW-3) and R.B. Pandey (PW-

11) have categorically stated that deceased had covered the

distance between her residence and the police station on foot.

It is true that as per the medico-legal report, the deceased was

100% burnt; however, none of the two doctors examined by

the prosecution had ruled out the possibility that a woman,

who is 100% burnt, would not be able to cover such a

distance on foot. In addition thereto, the deceased covered

aforesaid distance on foot, has also been supported by the

dying declarations. Thus, this fact cannot be said to be

inherently improbable.

During the course of the arguments, learned counsel for

the appellant has laid great stress by the fact that the deceased

was burnt 100%. It has been contended that in aforesaid

circumstances, the skin of the deceased would also be burnt

and the deceased would not have been able to put her thumb

impression upon the dying declaration recorded by Dr. K.K.

Gautam (PW-8). It may be noted in this regard that 100%

burns did not mean that every square inch of the body of the

victim would be burnt. Dr. K.K. Gautam has categorically

stated that he had got the thumb impression of the victim put

on the dying declaration; therefore, there is no reason to

disbelieve the same.

Learned counsel for the appellant has invited attention

of the Court to the statements made by Raj Kishore Mishra

(PW-3), who has stated that Babulal''s wife had told him that

deceased Pammi had told Babulal''s wife that she was dying

by setting herself afire but Draupadi Devi (PW-5), Babulal''s

wife has not stated that Pammi Singh had told her that she

herself had set her on fire. On the contrary, she has stated that

she did not know as to how the deceased Pammi Singh got

burnt.

Learned counsel for the appellant has also invited

attention of the Court to the statement of Umendra Singh

(PW-4), who is uncle of the deceased. Umendra Singh has

stated that he had gone to the Shahdol hospital after the

incident to meet Pammi. She was 100% burnt and was in a

critical condition; however, she could speak a little. On being

asked, Pammi had told him that she had asked her daughter

not to watch television but she did not listen to her; therefore,

Pammi was enraged and had set herself afire. This witness

further states that Pammi did not told her that her husband

Kumar Singh Thakur had set her on fire.

It may be noted in this regard that before she

succumbed to her injuries, Pammi had given three dying

declarations. At the time of giving each of one those dying

declarations, she was in a fit condition to give the same. She has unequivocally stated that she was set on fire by her

husband. She has also given a clear and cogent reason for her

husband to set her on fire. Pammi had four children, the

youngest being 8 months old. In these circumstances, it

appears highly unlikely that she would commit suicide. It

appears equally unlikely that even if she had committed

suicide, she would falsely implicate her husband in the crime

and jeopardize the future of her four children. In this

backdrop, the statement of uncle, Umendra Singh (PW-4)

appears to be prompted by worldly considerations because

had the appellant been sentenced to imprisonment, it would

have meant that mother''s family of the deceased would have

had to accept the responsibility of raising 4 minor children of

the deceased. Thus, the statement of Umendra Singh (PW-4)

cannot be relied upon. In aforesaid circumstances, the defence

taken by the accused/appellant also does not seems to be

worthy of credence. Moreover, it appears highly unlikely that

police would accompany a layman to his residence simply

because the man had complained that his wife is threatening

to commit suicide and set her children on fire. The story

narrated by the deceased in the dying declaration is quite

natural and is worth believing. There is no reason to doubt

that the deceased had not given such dying declarations.

Though, there is no other piece of evidence available in the

case but it is settled position of law that conviction can be

based solely upon a dying declaration, if it appears to be true

and voluntarily. In the present case, there are three similar

dying declarations recorded by two different authorities.

There is no reason to suspect that these dying declarations not

voluntarily. There is also no reason to suspect that either of

the aforesaid dying declarations was untrue.

As such, on the basis of aforesaid three dying

declarations the prosecution has succeeded in proving that the

appellant Kumar Singh Thakur had committed murder of his

wife Pammi Singh by pouring kerosene upon her and setting

her ablaze, as a result of a minor provocation. Even if it is

assumed for the sake of the arguments that the provocation

was too trivial and there was no motive for the appellant to

kill his wife. There is no iota of doubt that he had poured so

much kerosene upon her that she suffered 100 % burns. Thus,

he can be attributed at least with the intention to cause such

bodily injury as is sufficient in the ordinary course of nature

to cause death; therefore, the act of the appellant would come

under the ambit of "thirdly" in Section 300 of the I.P.C.

defining the offence of murder.

In these circumstances, the trial Court committed no

illegality or impropriety in convicting the appellant,

warranting interference by this Court.

Consequently, the conviction and sentence of the

appellant imposed by the trial Court is affirmed.

Accordingly, this criminal appeal is dismissed. The

conviction of the appellant under section 302 of the IPC and

the sentence imposed upon him by the trial Court is affirmed.